The Consent Counts project involves the BDSM communities in a nationwide education and activism program coordinated and led by the National Coalition for Sexual Freedom. This multifaceted campaign includes a comprehensive is analysis of current laws and court decisions, the development of legal arguments for changing the laws, participating in court cases, and ultimately, through lobbying, education and grass-roots activism, changing state laws and the way the public and the courts view BDSM. An important element of the project also includes an Educational Outreach Program (EOP) to educate our own communities of the current state of the law, of the effort NCSF is undertaking and to involve them in our strategic planning process and development of “best practices” by which we can protect ourselves and facilitate change.

The 2008 survey saw a total of 3,058 responses collected. Of those, 2,412 respondents resided in the United States (83.4%). Of the remaining 480 respondents, a total of over 42 other countries were represented. Where appropriate, the data is compared to the 1998 Violence & Discrimination Survey Against Sexual Minorities which collected over 1,000 responses to similar questions over the course of a year. The 1998 survey did not cover business or event-related experiences of harassment, nor did it ask about Internet experiences. The 2008 survey also included more questions about sexual activity and identity.

Table 1. Gender

2008

1998

Women

51%

46%

Men

45%

51%

Transgender

5%

1%

Intersexes

1%

2%

Table 2. Sexual Orientation

2008

1998

Heterosexual

41%

40%

Bisexual

35%

36%

Gay/lesbian

22%

22%

Other

7%

4%

A total of 1,146 (37.5%) respondents indicated that they had either been discriminated against, had experienced some form of harassment or violence, or had some form of harassment or discrimination aimed at their BDSM-leather-fetish-related business. Of the respondents who reported some form of persecution,

476 (41.5%) identified as male

615 (53.7%) identified as female

9 (.8%) identified as intersexed

78 (6.8%) identified as transgendered

(Sexual orientation, like gender, was a question which required some answer, but allowed respondents to choose as many as they felt might apply, so the percentage totals more than 100%.)

Of the 1,146 respondents who indicated that they had either been discriminated against or had experienced some form of harassment or violence,

380 (33.2%) identified as heterosexual,

440 (38.4%) identified as bisexual

292 (25.5%) identified as gay or lesbian.

97 (8.5%) indicated that they identified in some other way from heterosexual, bisexual or gay/lesbian.

(Sexual orientation, like gender, was a question which required some answer, but allowed respondents to choose as many as they felt might apply, so the percentage totals more than 100%.)

The sexual orientation of respondents who were discriminated against or had experienced some form of harassment or violence is compared in Table 6.1 to the total percentage of respondents who identified their orientation. It is interesting to note that Gay/lesbian, Bisexual and Other respondents have slightly higher rates of persecution than their average percentage of total respondents, while Heterosexuals are less likely to be discriminated against.

Table 3. Sexual Orientation and Discrimination

Total Percent 2008 Respondents

PercentPersecuted

Gay/lesbian

22%

25.5%

Bisexual

35%

38.4%

Heterosexual

41%

33.2%

Other

7%

8.5%

Total

105%

105.6%

In 1998, the survey asked: "Are you completely 'out' about your involvement in sexual minority practices? "62% stated they were not "completely out." That is statistically almost the same as the 59.5 and 59.7% of respondents in the current survey who said they weren't out to work and/or family.

11.3% (346) of the total number of respondents (3,058) reported being discriminated against by professional or personal service providers. That is 30% (346) of the respondents who were discriminated against (1,146). Those respondents could check one or more of the specific ways they were discriminated against (Table 8.), with 48.8% discriminated against by a medical doctor, and 39.3% discriminated against by a mental health practitioner.

Table 4. Discrimination by Professionals

Medical doctor

48.8%

Mental health practitioner

39.3%

Police or govt. employee

25.4%

Other Professional service provider

8.4%

Lawyer

7.8%

Other Personal service provider

6.1%

Dentist

1.7%

Building contractor

1.7%

Accountant

1.2%

Other

6.9%

In total, 203 (6.6%) respondents stated their business had been harassed or discriminated against.

Respondents could check one or more of the specific ways they were discriminated against (Table 5.).

Table 5. Business Discrimination

Negative media coverage

26.1%

Harassment by police/author

22.2%

Harassment by neighbors

20.7%

Harassment by organizations

20.2%

Loss of lease

17.7%

Refused credit card services

14.8%

Loss of business

13.8%

Refused insurance coverage

8.9%

Loss of occupancy certificate

4.9%

Arrest

3.0%

Fines

2.0%

Other

24.6%

When asked, "Have you curtailed your use of the Internet for fear of prosecution?" More than one-third of the respondents, 1,065 (34.8%) of the 3058 respondents, said "yes". Respondents could check one or more of the specific ways they curtailed their Internet use (Table 10.).

Table 6. Curtailed Internet Use

Didn't post image

71.5%

Didn't visit website

45.7%

Didn't post text

43.4%

Didn't link to website

38.7%

Didn't join email group

31.0%

Posted 18-over warn

25.7%

Barred users

16.1%

Didn't add meta-text

8.0%

Other

11.0%

9.3% of respondents, 285 out of the total returned surveys, reported that US 2257 had an impact on their use of the Internet. Of the 1,065 respondents who indicated that they had curtailed their use of the Internet regarding BDSM activities, 214 (20.1%) reported that US 2257 was a significant reason for that curtailment.

When respondents who experienced violence and/or harassment were asked, "Did you press charges?" 90% said no as compared to 96% of the respondents in the 1998 survey who did not press charges.

The Consent Counts project involves the BDSM communities in a nationwide education and activism program coordinated and led by the National Coalition for Sexual Freedom. This multifaceted campaign includes a comprehensive is analysis of current laws and court decisions, the development of legal arguments for changing the laws, participating in court cases, and ultimately, through lobbying, education and grass-roots activism, changing state laws and the way the public and the courts view BDSM. An important element of the project also includes an Educational Outreach Program (EOP) to educate our own communities of the current state of the law, of the effort NCSF is undertaking and to involve them in our strategic planning process and development of “best practices” by which we can protect ourselves and facilitate change.

Consent and BDSM: The State of the Law- BDSM activity, even where clearly consensual, can be and frequently is prosecuted under state criminal laws dealing with assault, aggravated assault, sexual assault or sexual abuse.

BDSM activity, even where clearly consensual, can be and frequently is prosecuted under state criminal laws dealing with assault, aggravated assault, sexual assault or sexual abuse. Such criminal prosecution can arise in various circumstances, including:

The BDSM “scene” turns out to be more intense or painful or harmful than the submissive participant anticipated, and she or he goes to the police.

Injury is caused that is sufficiently serious or sufficiently visible that it is brought to the attention of the police by an observer, by hospital personnel or by a friend or relative of the submissive participant.

The police raid a BDSM event and observe conduct that they interpret as unlawful.

A BDSM relationship ends, leaving the submissive partner with bad feelings, and he or she complains to the police about assault or abuse.

Someone with a grudge against a participant in the BDSM scene or relationship makes a complaint to the police.

Or pictures, videos, emails, film or sound recordings of BDSM conduct somehow come into the hands of the police.

The Critical Issue: Consent

The nature of the criminal offense here is that one person causes physical harm—injury and/or intense pain—to another person. It is important to understand that the law sees this as causing harm, not engaging in mutually beneficial conduct. This means that the law treats BDSM as violence, not as sex. That explains why the issue of consent is different in BDSM cases than in rape cases. In a rape case, the sex act is not viewed as criminal unless it can be shown that one party did not consent. In a BDSM case, however, the causing of physical harm is, in and of itself, criminal. The question is whether and to what extent the law will allow such criminal conduct to be excused by the fact that the injured participant consented to have harm done to her or him.

As long as courts and lawmakers put BDSM practice in the same category as criminal assault—which is a view that the “Consent Counts” campaign will try to change—it is not surprising that they will be reluctant to allow consent as a defense to anything more than minor harm or injury. And sure enough, that is the pattern shown by the court cases, even where a court is interpreting a statute that seems on its face to allow consent to be a defense in any case where there is “serious” injury. Moreover, the courts’ reluctance to allow consent as a defense is undoubtedly influenced by the general public’s misunderstanding of and adverse reaction to BDSM as a “perverse” or even “immoral” practice.

The State Statutes—Consent as a Defense

The definitions of assault, abuse and other such crimes involving infliction of physical harm, as well as the provisions (if any) dealing with consent as a defense to such criminal charges, are matters of individual states’ laws. There is no federal law in this area. The laws vary from state to state, and many state laws on assault do not mention consent as a defense.

There are, however, a number of state assault statutes that do provide for consent as a defense. Such statutes invariably place limits on the consent defense, both in terms of the degree of harm and in terms of the way in which consent is given and the types of people who cannot legally give their consent. Many such laws closely follow the language of the Model Penal Code’s (MPC) section on consent:

§ 2.11. Consent.

(1) In General. The consent of the victim to conduct charged to constitute an offense or to the result thereof is a defense if such consent negatives an element of the offense or precludes the infliction of the harm or evil sought to be prevented by the law defining the offense.

(2) Consent to Bodily Injury. When conduct is charged to constitute an offense because it causes or threatens bodily injury, consent to such conduct or to the infliction of such injury is a defense if:

(a) the bodily injury consented to or threatened by the conduct consented to is not serious; or

(b) the conduct and the injury are reasonably foreseeable hazards of joint participation in a lawful athletic contest or competitive sport or other concerted activity not forbidden by law; or

(c) the consent establishes a justification for the conduct under Article 3 of the Code.

(3) Ineffective Consent. Unless otherwise provided by the Code or by the law defining the offense, assent does not constitute consent if:

(a) it is given by a person who is legally incompetent to authorize the conduct charged to constitute the offense; or

(b) it is given by a person who by reason of youth, mental disease or defect or intoxication is manifestly unable or known by the actor to be unable to make a reasonable judgment as to the nature or harmfulness of the conduct charged to constitute the offense; or

(c) it is given by a person whose improvident consent is sought to be prevented by the law defining the offense; or

(d) it is induced by force, duress or deception of a kind sought to be prevented by the law defining the offense.

Model Penal Code § 2.11

For our purposes the key provision in section 2.11(2)(a), which allows consent as a defense to the infliction of bodily injury where the “injury…consented to is not serious”. Thus the question that courts must decide in any given case is what is meant by “serious” injury. And on this point, the MPC offers in Section 210.0 (3) a definition that, if courts would only apply it literally, is quite helpful in the BDSM context:

Section 210.0 Definitions…

3) ”serious bodily injury” means bodily injury which creates a substantial risk of death or which causes serous, permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ.

Read literally, this would allow consent as a defense to most forms of BDSM practices. Breath control and certain other play might be seen by a court as creating “a substantial risk of death”. And scarification and some other forms of “extreme” or “heavy” scenes might be found to cause “serious, permanent disfigurement, or protracted loss or impairment of the function of {a} bodily member or organ.” But a literal application of the MPC standard would permit consent as a defense in most assault or abuse prosecutions based on BDSM practices.

The problem is that the courts—not just some courts; all courts—consistently classify as “serious” almost any injury, no matter how slight, and even in some cases interpret the causing of significant pain, even with no physical injury, as “serious injury” to which consent cannot be given.

The Cases—Courts Refuse To Accept Consent as a Defense

To date, there is not a single appellate court decision anywhere in this country that has accepted consent as a defense in an assault or abuse prosecution arising from BDSM conduct. The following overview, from Consent to Harm by Vera Bergelson, 28 PaceLaw Review 683, at p.691, is a good summary of the case law:

Since any harmful act that does not fit into the “athletic” or “medical” exception is, by definition, criminal, unless the inflicted injury is not serious, assessment of the seriousness of the victim’s injury determines the outcome of many cases involving consensual harm. A typical penal statute classifies bodily injury as serious if it “creates a substantial risk of death or causes serious, permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ.” Pursuant to this definition, any short-term, non-life-threatening injury should not be deemed “serious.” Yet, as the MPC acknowledges, the assessment of the seriousness of harm is often affected by judges’ “moral judgments about the iniquity of the conduct.” Courts tend to inflate the risk and harmfulness of an activity they want to denounce. For example, any injury caused during a sadomasochistic encounter has been consistently classified as serious.

28 Pace Law Review 683, 691
An early, and typically bad, example of a pure “consent is no defense” ruling is People v Samuels, a 1967 California decision. In that case, Martin Samuels was convicted of assault based on his conduct in a film of an apparently consensual BDSM scene. The court not only rejected the consent defense, but also appeared to hold the view that any such consent would be “some form of mental aberration”:

Even if it be assumed that the victim in the ‘vertical’ film did in fact suffer from some form of mental aberration which compelled him to submit to a beating which was so severe as to constitute an aggravated assault, defendant's conduct in inflicting that beating was no less violative of a penal statute obviously designed to prohibit one human being from severely or mortally injuring another.

People v. Samuels 250 Cal.App.2d 501, 514, 58 Cal.Rptr. 439, 447 (Cal.App. 1967)
The Samuels decision was cited as recently as 2006, in People v Febrissy. In that case, the defendant’s lawyer sought to invoke the doctrine enunciated by the Supreme Court in Lawrence v. Texas, which held (in a sodomy prosecution) that, absent a compelling societal interest (and moral disapproval is not such an interest), the government cannot make private consensual sexual activity a crime. That argument was rejected.

An argument based on Lawrence v. Texas was also rejected in the Nebraska case of State v. Van, 268 Neb.814 (2004). Van was convicted of first-degree assault on the basis of an extended imprisonment and extremely intense BDSM/torture of a gay male submissive. The submissive initially consented to practices that were quite intense, but the evidence was in conflict as to whether he later withdrew that consent. On appeal, defendant Van argued that this was a case of “two adults who, with complete and mutual consent, engaged in sexual practices common to their homosexual, BDSM lifestyle” and as such was protected under Lawrence v. Texas.

Rejecting that argument, the court made three points. First, it noted that the Lawrence opinion contained a phrase that its doctrine only applies “absent injury to a person”. Second, the court emphasized that the evidence on the issue of consent was not clear-cut. Finally, and most fundamentally, the court held—citing the other decisions discussed in this paper—that consent is not a defense to a charge of assault:

Our statutes defining first and second degree assault include no reference to consent…This court has held that “all attempts to do physical violence which amount to a statutory assault are unlawful and a breach of the peace, and a person cannot consent to an unlawful assault”.

In most BDSM assault cases, the testimony of a complaining witness (the injured person) is central to the case, and often there is conflict on the issue of consent between the defendant and the complaining witness. However, even where both participants agree that the acts in question were consensual, the courts have held that consent cannot be a defense. Thus, in Commonwealth v. Appleby, a 1980 Massachusetts case, the court said:

“Grimm’s consent to assault and battery upon him by Appleby by means of a dangerous weapon cannot absolve Appleby of the crime…”Commonwealth v. Appleby, 380 Mass.296, 311, 402N.E.2d 1051,1061 (Mass. 1980).

In Iowa v. Collier, there were wildly differing accounts given of a BDSM incident, but the judge refused to let the jury consider the question of consent. The Appellate Court upheld the conviction and ruled that consent was not a defense. Significantly, the Iowa law on assault was in most ways similar to the Model Penal Code.

Provided, that where the person doing any of the above enumerated acts, and such other person, are voluntary participants in a sport, social or other activity, not in itself criminal, and such act is a reasonably foreseeable incident of such sport or activity, and does not create an unreasonable risk of serious injury or breach of the peace, the act shall not be an assault.

I.C.A. § 708.1
The court’s moralistic tone in rejecting the consent defense is a good illustration of the type of thinking that seems to underly most judges’ handling of BDSM assault cases:

The foregoing discussion compels us to conclude that, in the present case, the legislature did not intend sadomasochistic activity to be a "sport, social or other activity" under section 708.1. We are hesitant to give a precise definition of this term and believe it is more appropriate that its meaning be interpreted on a case by case basis. However, it is obvious to this court that the legislature did not intend the term to include an activity which has been repeatedly disapproved by other jurisdictions and considered to be in conflict with the general moral principles of our society. In fact, the statutory provision in question specifically excludes activities which would "create an unreasonable risk of serious injury." There can be little doubt that the sadomasochistic activities involved in this case expose persons to the very type of injury deemed unacceptable by the legislature. Were we to follow defendant's broad interpretation of "social activity," street fighting, barroom brawls and child molestation could be deemed acceptable social behavior, since such conduct is considered acceptable by some segment of society.

State v. Collier 372 N.W.2d 303, 307 (Iowa App.,1985)
People v. Jovanovic was a New York case involving an intense scene between a man and a woman who had previously engaged in extensive Internet discussion of their BDSM interests. The scene apparently went bad, and the woman went to the police. Mr. Jovanovic was tried and convicted of assault, sexual assault and kidnapping. The Court of Appeals, although it reversed the convictions on evidentiary grounds, very explicitly stated in a footnote that consent, while available as a defense to the charges of kidnapping and sexual assault, was irrelevant to the assault charge:

There is no available defense of consent on a charge of assault under Penal Law §§ 120.00[1] and 120.05[2] (contrast, Penal Law § 120.05[5] [where lack of consent is an element]). Indeed, while a meaningful distinction can be made between an ordinary violent beating and violence in which both parties voluntarily participate for their own sexual gratification, nevertheless, just as a person cannot consent to his or her own murder (see, People v. Duffy, 79 N.Y.2d 611, 584 N.Y.S.2d 739, 595 N.E.2d 814), as a matter of public policy, a person cannot avoid criminal responsibility for an assault that causes injury or carries a risk of serious harm, even if the victim asked for or consented to the act (see, e.g., State v. Brown, 154 N.J.Super. 511, 512, 381 A.2d 1231, 1232; People v. Samuels, 250 Cal.App.2d 501, 513-514, 58 Cal.Rptr. 439, 447, cert. denied, 390 U.S. 1024, 88 S.Ct. 1404, 20 L.Ed.2d 281; Commonwealth v. Appleby, 380 Mass. 296, 402 N.E.2d 1051;Iowa v. Collier, 372 N.W.2d 303).

It is important to note that the Jovanovic court cited the Samuels, Appleby and Collier decisions, confirming that the prevailing view is that there is a settled precedent, established by a series of decisions in state courts across the country, that consent is no defense to a charge of assault arising from BDSM practices.

A Few Rays of Hope

Despite the consistent refusal of state courts to recognize consent as a defense to BDSM-based assault prosecutions, there are reasons to hope that a long-term, carefully planned Consent Counts campaign can reform this area of the law.

For one thing, the U.S. Supreme Court has created a doctrine of privacy that, at least in some areas of sexual behavior, now insulates consenting couples from criminal prosecution. While the doctrine ofLawrence v. Texas (mentioned earlier in this paper) has not been applied in the BDSM context, the principle of privacy is a powerful one that works in our favor.

The Model Penal Code’s quite favorable definition of “serious injury” also has the potential for use in changing the trend of court decisions. At the very least, it gives us the starting point to argue that the consequences of BDSM should be treated no differently from other injury-causing activities.

Finally, while no decision has yet explicitly accepted the defense of consent in a BDSM-based assault prosecution, at least two courts have reversed convictions on evidentiary grounds in ways that suggest that the consent of the “victim” may have played a role in their thinking. Thus, while the Jovanovic footnote states that consent is no defense to assault charges, the court’s reversal of the conviction was based on failure to permit the use of evidence of consent, and the court reversed not only the sexual assault and kidnapping convictions (for which absence of consent is an element of the offense), but also the assault conviction.

And, a recent Rhode Island decision, State v. Gaspar, reversed a BDSM assault conviction on evidentiary grounds that related in part to the issue of consent. While the court did not discuss the issue of consent with any specificity, the decision contains the following assessment of the central issue in the case:

The evidence adduced at the trial of this criminal case included testimony concerning a multitude of unconventional sexual practices but ultimately presented only one question for the jury's determination: did the events of the night in question constitute a mutually consensual sexual encounter between two adults or a brutal sexual assault?

State v. Gaspar 982 A.2d 140, 141 (R.I.,2009)
This is, in fact, the core issue we face in the Consent Counts campaign: Can the courts and society be brought to understand what we in the BDSM community know to be the case—namely, that what we do “constitutes a mutually consensual sexual encounter between adults” and is not “a brutal sexual assault”? If we can get that point across, then perhaps we can persuade courts and legislatures that injuries caused by BDSM should be prosecuted only when not consensual or when the injury is so severe (the Model Penal Code definition) that it constitutes an abuse of BDSM practices.

Other Legal Models for BDSM Cases

Prosecutions that grow out of BDSM incidents are generally brought under the assault statutes. This is one of the reasons, perhaps the major reason, that courts rebel against allowing the defense of consent. The essence of the crime of assault is the attack on one person by another. The concept of consenting to such an attack is, to some extent, counter-intuitive.

Some cases arising from BDSM incidents, however, have been prosecuted under the criminal charge of battery. Battery, unlike assault, does not necessarily involve an attack by one person against another. The crime of battery is injurious touching or striking of one person by another. Thus, in battery cases, there is an issue as to the context in which the injurious touching or striking occurred. As the Court of Appeals of Indiana stated in Helton v. State, 624N.E.2d499(1993) at 514, n.22:

Consent is connected with the harm or evil sought to be prevented; therefore, if the victim consents to the defendant’s touching, that touching is not rude or insolent and should not be considered unlawful unless it meets one of the exceptions to the general rule.

The exceptions to the general rule (in Indiana) that consent is a defense to battery, and specifically is a defense available in cases “involving sexual overtones”, are as follows:

(1) Where the defendant goes beyond acts consented to;

(2) Where it is against public policy to permit the conduct or resulting harm even though it is consented to, as, as where there are no sexual overtones and the battery is a severe one which involves a breach of the public peace, as well as, an invasion of the victim’s physical security;

(3) Where consent is ineffective as where it is obtained by fraud or from one lacking legal capacity to consent;

The concept here is that touching or striking, unlike an attack, is not inherently criminal. (Similarly, the conduct underlying the offense of rape - sexual intercourse - is mutually pleasurable conduct when consensual, and becomes criminal only in the absence of consent.) Thus, when that conduct is consensual, even where some injury is caused, it is more palatable to find that such consent prevents the conduct from being a criminal offense.

Our communities certainly do not view BDSM as an attack by one person on another. Rather, we see BDSM as mutually pleasurable conduct, the details of which are negotiated in advance and generally subject to agreed safe words and other protections. If we could persuade courts to adopt that view of BDSM, we might also persuade them that such cases are not appropriately prosecuted as assault, but rather as battery. Thus consent would normally be a defense—as is true in battery cases with “sexual overtones”—subject to the exceptions listed above.

This would not necessarily eliminate the moralistically motivated tendency of courts to seek reasons not to allow consent as a defense, however. In Govan v. State, 913 N.E.2d.237 (Indiana Appeals Court 2009), the defendant (Govan) was convicted of both assault and battery, based on a BDSM incident in which he “punished” the victim (A.H.) by branding her with a hot knife and whipping her with an electrical extension cord. The appellate court rejected Govan’s argument that A.H.’s consent was a defense to his conduct. First, it ruled that consent could not be a defense to the assault charge. Second, although the court acknowledged that consent was a valid defense in a battery case having “sexual overtones”, it found that the use by Govan of a knife invalidated the defense:

Turning to the case at hand it is undisputed that it involves sexual overtones. Notwithstanding those overtones, A.H.’s consent is not a defense to the crime because Govan’s actions involved a deadly weapon,...namely a knife, and therefore A.H.’s consent is not available as a defense to battery. Govan, 913 N.E.2d at 242-243.

In summary, one approach that could increase our communities’ access to a consent defense would be to persuade the courts that BDSM incidents should be prosecuted, if at all, under battery statues rather than as assault. Even in battery cases, however, we need to find ways to deal with the moralistic prejudices that lead courts to stretch for reasons to reject consent as a defense.

The DSM Criteria—Changing Psychiatry’s View

It is important to note that, in parallel with the Consent Counts project, the National Coalition for Sexual Freedom is working to change the way BDSM is understood by the psychiatric profession whose views influence the attitudes of the public and the courts toward our communities. Until 1994, BDSM was classified in the American Psychiatric Association’s Diagnostic and Statistical Manual (the “DSM”) as a form of mental illness. With the adoption of DSM IV in 1994, this classification was modified so that today BDSM—along with cross-dressing and fetishism—is a mental illness if it is determined that you are suffering “clinically significant distress—i.e., your BDSM behaviors: 1) are obligatory, 2) result in sexual dysfunction, 3) require participation of non-consenting individuals, 4) lead to legal complications, or 5) interfere in social relationships.

The Association is currently engaged in a new revision, referred to as DSM V. NCSF is actively involved in this process, working to further reduce, if not remove entirely, the stigma attached to BDSM. Importantly, this new revision may result in a distinction between consensual and non-consensual BDSM. This, of course, would be consistent with and would give impetus to our political and social advocacy in the Consent Counts project.

Copyright, NCSF, 2010. NCSF grants permission to reproduce this document, provided it is reproduced in its entirety and distributed free of charge.

The National Coalition for Sexual Freedom (NCSF) believes that the most important issue facing the BDSM/Leather/Fetish communities today is the consistent practice of courts and law enforcement officials to prosecute BDSM as criminal assault, with no defense of consent permitted. We know that BDSM is not assault, but rather is pleasurable, loving adult erotic activity, as long as it is mutually consensual.NCSF is leading a major national campaign – Consent Counts – to change the laws and police practices that our communities now endure, and to establish that consent is available as a defense in criminal BDSM prosecutions.

Best Practices in the BDSM/Leather/Fetish Communities The practice of BDSM (Bondage, Discipline, SM) consists of intimate mutually pleasurable erotic activity within the scope of informed consent. The following “best practices” have been developed by our communities to ensure that the standard of “safe, sane and consensual” is met by all BDSM participants:

Guiding Principles “SAFE” All participants are knowledgeable about the techniques and safety concerns involved in what they are doing, and all act in accordance with that knowledge.

“SANE” Knowing the difference between fantasy and reality, and acting in accordance with that knowledge.

“CONSENSUAL” All participants understand the nature of the activity in which they will be engaged, and the limits imposed by each participant, and respect such limits at all times.

Best Practices Each participant should fully understand both the desires and the limits of each other participant. Such understanding may be based on long familiarity with the other participant(s) or, where participants are new to each other, on a full discussion in advance of the BDSM activity.

Consent must be clearly given to all aspects of planned BDSM activity and such consent must be freely given.

Each participant in a BDSM activity is free to withdraw previously given consent at any time.

Each participant should fully understand any limitations on another participant’s ability to understand and consent fully to the planned BDSM activity, such as age, diminished mental capacity or use of drugs or alcohol.

A means should be provided - normally a “safe word” - for the “bottom” to signal clearly her/his desire to terminate the activity.

Relationships among BDSM practitioners should be fully respected by others. It is the responsibility of each person to make clear to others any relationship that imposes limits on that person’s participation in BDSM activities.

At parties or other events, the use of monitors may be advisable and rules should be clearly displayed.

The more intense and physical the BDSM activity is, the more important it is to ensure clear understanding of and consent to the planned activity.

Participants must recognize that BDSM activity resulting in serious bodily harm or that goes beyond the expectations of one of the participants may be deemed criminal, even where consent was initially given.

Established in 1997, theNational Coalition for Sexual Freedom (NCSF) is committed to creating a political, legal and social environment in the US that advances equal rights for consenting adults who engage in alternative sexual and relationship expressions. NCSF aims to advance the rights of, and advocate for consenting adults in the BDSM-Leather-Fetish, Swing, and Polyamory Communities. We pursue our vision through direct services, education, advocacy, and outreach, in conjunction with our partners, to directly benefit these communities.

Every year, Leather SINS produces two national BDSM events in Chicago: Kinky Kollege and SINSations in Leather. Ever since the Concerned Women for America attacked five Midwest BDSM conferences in 2002, Leather SINS has consulted with the National Coalition for Sexual Freedom to ensure that our events would not face the same problems if we were attacked by religious political extremists.

Leather SINS has consulted with NCSF about a variety of issues while producing our events. We asked Susan Wright to accept the position as our media spokesperson, posting her phone number on our website so she can respond instantly to any media inquiries. Susan checks every page of our website for each event, looking for statements and phrases that may need clarification or may possibly cause problems if taken out of context by the media.

Leather SINS has gratefully named NCSF as one of our "WE CARE!" charities (along with LA&M). We're proud to be a Coalition Partner of NCSF, and would urge any group to take advantage of NCSF's knowledgeable Incident Response program consultants when producing an event.

NCSF's Incident Reporting & Response was created to provide assistance to individuals and groups within the alternative sexual expression communities. If you engage in SM, fetish, swing or polyamory practices, and are being persecuted or discriminated against because of it, please contact NCSF. If your group or business is being harassed by religious political extremists or if you need help doing outreach to your local law enforcement, please contact NCSF. GET HELP NOW!

The issue must openly, directly, and specifically relate to BDSM, swing or poly activities between consenting adults; in other words, the problems you face must relate to or be caused from your involvement in BDSM, swing or poly without question.

NCSF is not legal aid, nor do we offer specific legal advice for individuals. NCSF is a resource for the members of the kink, poly and Lifestyle communities and for people seeking information about them. NCSF provides publicly available information on kink and nonmonogamy for consenting adults. We advocate on behalf of the BDSM, swing and polyamory communities.

Incident Reporting & Response - 2014 Report

By Susan Wright

NCSF’s Incident Reporting & Response helps people who are being discriminated against because they are kinky and/or nonmonogamous: 184 requests for help were received in 2014. One-fourth of the cases evolved into weeks- or months-long projects, requiring the education of a number of legal, medical and mental health professionals about kink. Other professionals who requested information or resources to better serve kinky people included: academics, social services, vanilla nonprofit organizations & events, authors, merchant services, and insurance brokers.

The drop in IRR requests can be partly attributed to the increased page views on NCSF’s Kink Aware Professionals database, with over 1,200 kinky people directly accessing KAP in 2014 to find a lawyer, therapist or other professional rather than asking NCSF for help through Incident Reporting & Response. Recognizing the need for more professionals to be listed in KAP, in 2014 NCSF joined forces with GayLawNet, a free referral database of gay-friendly attorneys. GayLawNet also began offering a Kink Aware Professional category for their lawyers to self-identify as kink aware.

Of the 184 requests for assistance, the majority dealt with BDSM while only 6 involved polyamory/swing issues:

73 criminal issues

33 child custody

26 requests for info from professionals

20 kink group issues

10 discrimination issues

5 job discrimination

6 media related incidents

4 divorce

4 civil law issues

3 outings

Criminal issues

The 73 requests that involved criminal issues typically took the most time and effort to help resolve, including finding kink-aware legal representation and educating relevant professionals to remove kink as a barrier to services. The requests break down as follows:

In 2014, there was a significant drop in requests for help with child custody/divorce issues. That is due to the change in the DSM-5 criteria, which made it clear that people who are kinky are not mentally ill:

2014 – 37 people

2013 – * see note

2012 – 87 people

2011 – 115 people

2010 – 125 people

2009 – 132 people

An even bigger change due to the DSM-5 can be found in the percentage of kinky parents who now retain child custody. More kinky parents who come to NCSF for help are successful in removing kink as an issue in family court and with social service workers and Child Protective Services. Of the 33 cases, 3 are still ongoing, but of those that assigned custody:

2014 – 89% (27 out of 30 parents) custody was not removed because of kink.

2012 – 53% (41 out of 77 parents) custody was not removed because of kink.

2011 – 23% (23 out of 101 parents) custody was not removed because of kink.

2010 – 12% (13 out of 109 parents) custody was not removed because of kink.

Groups

There was also a drop in the number of requests from BDSM, swing and polyamory educational and social groups. Most people are now aware that they need to get professional advice in setting up their clubs and association papers, and it is common knowledge how to produce an event legally. As a result, NCSF received fewer requests for establishing a nonprofit or dealing with zoning laws, and instead primarily assisted groups in handling adversarial members, liability issues, doing outreach to local law enforcement, and handling media incidents. NCSF helped 20 kink groups in 2014 vs. 77 in 2012.

Requests for help with swing and polyamory issues dropped to less than 3% of the total requests in 2014 compared to nearly 9% in 2012 and nearly 5% in 2011. There has been a significant drop in the number of house parties as Lifestyle events have shifted toward a business model that uses club venues, cruise ships and hotels. This means fewer busted house parties, and less need for NCSF services.

The decline in discrimination against nonmonogamists may also be due in part to the success of gay marriage. The mainstream media covers relationship issues like nonmonogamy much more positively than it did five years ago. According to the NCSF Media Updates, of the articles that involved nonmonogamy as a subject:

2014 – 53 articles: 77% were positive and 23% were negative.

2013 – 42 articles: 81% were positive and 19% were negative.

2012 – 21 articles: 62% were positive and 38% were negative.

2011 – 33 articles: 30% were positive and 70% were negative.

2010 – 50 articles: 16% were positive and 84% were negative.

For updates and details on IRR requests, look for our quarterly IRR reports in the NCSF Newsletter. Sign up by emailing
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* Note: From 2002-2011, NCSF’s Incident Reporting & Response received over 500 requests every year. In 2012, that number dropped to 474, likely due to the change in the DSM-5 and an increased use of KAP. The IRR data for 2013 was destroyed by Leigha Fleming when she deleted her emails and documentation from the NCSF server. Some people have reported receiving no response last year, and that may have contributed to fewer people coming to NCSF this year. Susan Wright took over as director of IRR in January, 2014.

NCSF is not legal aid, nor do we offer specific legal advice for individuals. NCSF is a resource for the members of the kink, poly and Lifestyle communities and for people seeking information about them. NCSF provides publicly available information on kink and nonmonogamy for consenting adults. We advocate on behalf of the BDSM, swing and polyamory communities.

Unfortunately, due to limited resources the NCSF is only able to take the cases that meet the criteria set by our mission. All of our work is done by volunteers and we accept no payment for our services.

We are however happy to receive donations earmarked specifically for use in the IRR Program. Click here to donate, Make sure you note "Incident Reporting & Response" or "IRR" in the comment box if you want to restrict your donation. We do provide basic information as resources dictate and referrals to professionals as part of our Kink Aware Professionals database.

The criteria for acceptance listed were developed to meet the primary concerns of our voting constituencies, our Coalition Partners. When the NCSF agrees to take a case the impact can be realized by all of our constituents as a whole and therefore it is up to the policies set in motion by NCSFCoalition Partners to decide whether existing resources allow for a case to be handled effectively.

Mission: To decriminalize consensual BDSM (Bondage, Discipline, Dominance/submission, sadomasochism) in U.S. law by ensuring that consent will be recognized as a defense to criminal charges brought under assault laws and other statutes.

Unlike most other sexual issues (rape, for example), BDSM activities—a “scene”, a dungeon party, a Dominant/submissive or Master/slave relationship—can result in a criminal prosecution and conviction even where the activity is entirely consensual. It’s important to remember that most BDSM activities are treated as violence and not sex. This is not speculation; in 2010, NCSF’s incident response help line received 204 requests for help concerning criminal prosecutions.

NCSF’s research of cases throughout the United States revealed that not a single appellate court decision has allowed consent as a defense to a BDSM-based criminal prosecution for assault, sexual abuse, etc. Even where a state law allows the consent defense in cases that do not involve “serious bodily injury,” appellate courts have ruled that the use of nipple clamps or hot wax produces “serious bodily injury”.

The realization that our communities are at risk of criminal prosecution led to the launch of the “Consent Counts” initiative in 2006 at a Leather Leadership Roundtable at NGLTF’s Creating Change. At this Roundtable and one held subsequently at the Leather Leadership Conference, decriminalization of consensual BDSM was determined to be the number one priority of the BDSM/Leather/Fetish communities. It was subsequently determined that NCSF would take a leadership and coordinating role. This is, with the related initiative to change the way BDSM is viewed by psychiatry in the DSM criteria, NCSF’s most important project.

Our “Consent Counts” initiative is multi-faceted. We have researched the statutes, court decisions and relevant law review articles in all 50 states, and the results of that research are available on the NCSF website. We are presenting programs and holding meetings with our communities across the country, to build understanding of the issues and to develop consensus on an effective approach to nationwide activism. A national discussion guide has been created to facilitate local discussions to assist in the drafting of a community-wide statement on consent at LLC at Seattle 2013 with the goal of decriminalization and to promote local and national activism. This aspect of our initiative also includes an EOP focused on Frequently Asked Questions about the criminal law issues and on Best Practices by which individuals and groups can reduce the likelihood of prosecution and—equally important—enable us to argue more effectively that what we do is mutually pleasurable erotic activity (not violence) and that care is taken to ensure consensuality and avoid excessive stimulation or unintended harm. In addition, NCSF has published primers for both alleged victims and for those accused of consent violations.

The activism aspect of “Consent Counts” will be equally multifaceted. We have already begun reaching out to law enforcement, to legislators and to educators. In the coming year, we will be presenting continuing legal education (CLE) programs to lawyers, working with bar associations and law student groups, and participating selectively with “friend of the court” briefs in legal cases. Further down the road is the development of grass roots activism to change state laws and law enforcement practices.

In all of this, we need your help. You can report BDSM-related criminal investigations and prosecutions to NCSF. Your local groups can host “Consent Counts” presentations and discussions on activism strategies and on community practices that can help avoid criminal problems. As we go forward, we are seeking volunteers for various forms of activism and educational outreach. And, of course, your continuing donations to the NCSF Foundation (tax-deductible) and NCSF are essential for making this project effective.

About Incident Reporting & Response

The NCSF Incident Reporting & Response (IRR) program provides assistance to individuals and groups within the alternative sexual expression communities who become victimized because of SM, leather, fetish, or swing practices.

Program Goals: NCSF's Incident Reporting & Response was created to provide assistance to individuals and groups within the BDSM, swinging and poly communities who are experiencing discrimination or needs assistance because of their interests and activities.